A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2020

Responding to Opposing Arguments Isn't "Sandbagging"

David M. Fry, June 25, 2020
Litigation Legal Writing

As Andrew recently explained, the District of Delaware has a longstanding rule against "sandbagging," or saving arguments for a reply brief that should have been in a full and fair opening brief. But not every new argument is sandbagging.

In f'real Foods, LLC v. Hamilton Beach Brands, Inc., C.A. No. 16-41-CFC (D. Del. June 24, 2020), the defendants opposed a permanent injunction on sale of their commercial blenders by pointing out that the plaintiffs presented no evidence that their blender could meet the technical requirements demanded by one of defendants' customers (Dairy Queen).

In reply, the plaintiffs submitted new evidence and argued for the first time that their blenders could be modified to meet Dairy Queen's …

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Motion to Amend Filed Before Deadline Not Untimely

Andrew E. Russell, June 23, 2020
FRCP FRCP 15

The judges' form scheduling orders in D. Del. require deadlines for motions to amend, tracking FRCP 16(b)(3)(a), which says scheduling orders must limit the time to amend pleadings.

In an oral order on Friday, Judge Burke granted a motion to amend an answer that was filed on the day of the deadline set in the scheduling order.

He described how difficult it would be for a party to argue that a motion to amend was untimely when it was filed before the agreed-upon deadline:

It would be the unusual case where a Court had previously determined (at the parties' request) that amendment could be allowed by a certain date without causing harm to the case schedule, and yet …
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"Plausibility" Shows Its Teeth

Jeff Castellano, June 23, 2020
R&R MTD

Judge Burke's exacting standards regarding the sufficiency of pleadings in a patent case were on display in a recent R&R, in which he recommended dismissing indirect and willful infringement claims. This ruling demonstrates that although plaintiffs are not required to prove their case as the pleading stage, they are well advised to bolster their complaint with allegations that link the elements of their claims to specific facts.

The key passages of the 24-page R&R in Midwest Energy Emissions Corp. v. Vistra Energy Corp., C.A. No. 19-1334-RGA-CJB concern what makes an infringement claim "plausible" under the Twombly/Iqbal standard.

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Judge Andrews Draws Clear Line on ANDA Inducement Claim

Andrew E. Russell, June 22, 2020
Inducement ANDA

Pill Bottle
Sharon McCutcheon, Unsplash

Judge Andrews today granted a rare Rule 12(c) motion in an ANDA action, entering judgment against the plaintiffs on their inducement claim based on the pleadings alone.

The method claim at issue requires administering a drug "from about 3 hours to about 1 hour" before a colonoscopy.

The accused product's label includes instructions to administer the drug "start[ing] approximately 5 hours prior to [a] colonoscopy," and then to "drink at least three 8-ounce cups . . . of clear liquids . . . at least 2 hours before" the procedure.

Judge Andrews held that those allegations—even if true—cannot show inducement of infringement, even if in practice some amount of infringement would occur. …

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"Though the Pennypack factors may be very forgiving, they are not a sieve."

Andrew E. Russell, June 19, 2020
Discovery Dispute Pennypack

This is not an illustration of the Pennypack factors in action
This is not an illustration of the Pennypack factors in action Lindsay Cotter, Unsplash

I just came across the above quote, which is from a discovery dispute back in April where Judge Burke struck a very-late-disclosed witness.

It's an interesting—and accurate—description of the Pennypack factors. Most DE patent litigators are familiar with Pennypack, which set forth a loose set of factors for deciding whether to apply the "extreme" sanction of excluding "critical" evidence. Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir. 1977).

Even though Pennypack issued way back in 1977, modified versions of its list of factors are still applied today. When they come up, they most often favor the party producing …

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District Court Details Re-Opening Plan

Jeff Castellano, June 16, 2020
COVID-19

The District of Delaware just announced its phased re-opening plan, which starts tomorrow (June 17).

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

The new “District of Delaware Re-Opening Guidelines” came on June 15, about three months after shutdowns began. During the shutdown, the Court issued a number of orders suspending certain operations and encouraging Judges to shift to videoconference or teleconference proceedings.

Yesterday’s guidelines represent the Court’s first official statement regarding a broader return to in-person operations.

The attached order sets a June 17 start date for Phase One.

Highlights

In all of the Phases, the Court will require face masks and social distancing in common areas, although use of those measures in individual courtrooms is left to the judges. …

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"Sandbagging" and the District of Delaware

Andrew E. Russell, June 3, 2020
Litigation Legal Writing

Sandbags
ideadad, Unsplash

In an R&R this week, Magistrate Judge Burke flatly declined to consider a "critical[]" argument raised for the first time in a reply brief:

In their reply brief, Defendants made one other argument, which they failed to raise in their opening brief . . . . (D.I. 37 at 9 (“Critically, neither of these manuals refer to the named defendants in this case[.]”)) Because this argument could have and should have been raised in the opening brief, it has been waived, and so the Court will not consider it here. See McKesson Automation, Inc. v. Swisslog Italia S.p.A., 840 F. Supp. 2d 801, 803 n.2 (D. Del. 2012); LG Display Co., Ltd. …
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